Delhi High Court
Jai Kanwar Jain vs Delhi Development Authority on 18 December, 2008
Author: Vipin Sanghi
Bench: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision : 18.12.2008
% W.P.(C) 1337/2008
JAI KANWAR JAIN ..... Petitioners
Through: Mr. Pankaj Vivek, Advocate
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Sangeeta Chandra, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J. (Oral)
1. The petitioner while working as an Upper Division Clerk with the Municipal Corporation of Delhi applied under the Rohini Residential Scheme floated by the DDA in the year 1981 for allotment of a 48 sq. meters plot. The petitioner was made an allotment vide demand-cum- wpc 1337.08 Page 1 of 13 allotment letter with block dates 11.06.2004 to 15.06.2004 of a plot admeasuring 32 sq. meters. The petitioner made payment of the amount demanded by the DDA. Eventually, the allotment made to the petitioner was cancelled by the DDA on 28.11.2007, after issuance of the show cause notice dated 17.09.2007 on the ground that the petitioner, his wife and his son are already in possession of another property bearing No.112, Pocket F-22, Sector-3, Rohini Residential Scheme, Delhi-85 admeasuring about 90.00 sq. mts. It is this cancellation which has been challenged by the petitioner in this writ petition.
2. The Rohini Residential Scheme contained the eligibility conditions in the brochure issued by the DDA. The eligibility condition as contained in the brochure reads as follows:
"1. ELIGIBILITY:
Any individual who is not a minor may apply for allotment of only one plot if he/she fulfils the following conditions:
(i) The total annual income of the individual from all sources including the income of his wife/her husband, and minor children should
(a) In the case of EWS/Janata not exceeding Rs.
600 P.M.
(b) in the case of LIG in excess of Rs. 600 but should not exceed Rs. 1000 wpc 1337.08 Page 2 of 13 P.M. (C) in the case of MIG in excess of Rs.
1000 but should not exceed Rs. 2000 P.M.
(ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on lease-hold or free-hold basis any residential plot of land or a house or have not been allotted on hire-purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonment. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mts. an application for allotment of plot can be entertained. Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even less than 65 sq. mts. shall not, however, be eligible for allotment."
3. The admitted position is that the petitioner, his wife and his son have in the meantime acquired the aforesaid plot bearing No.112, Pocket F-22, Sector-3, Rohini, which admeasures 91.96 sq. meters. The submission of learned counsel for the petitioner is that the individual share of the petitioner in the aforesaid plot is about 30 sq. meters, and even if the share of his wife is clubbed to his share, it comes to less than 65 sq. meters. He submits that since the share of the petitioner is less than 65 sq. meters, he continues to be eligible for allotment of the plot in question in terms of the eligibility condition aforesaid. He further submits that the said plot has been acquired by him not through an allotment by the DDA, but privately from the wpc 1337.08 Page 3 of 13 allottee of the DDA. He argues that the last part of the aforesaid clause, which provides that "Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even less than 65 sq. meters", would not be eligible for allotment, would, therefore, not apply to the petitioner‟s case. The petitioner in support of his submission relies upon (2007) 9 SCC 67 "Chandigarh Housing Board v. Major General Devinder Singh (Retd.) & Anr." and the decision of this Court in "Jitender Pal Bhardwaj v. Delhi Development Authority" in W.P.(C) No.5417/2007, decided on 07.08.2008. Learned counsel for the petitioner submits that the purpose of providing that the persons who own a house or plot allotted by the DDA, irrespective of the area of the house or the plot, would be ineligible under the scheme, is to exclude persons who have already availed the benefit of allotment made on predetermined rates, which are concessional rates when compared to the market rates. Learned counsel submits that the purpose of this embargo is that no person should be permitted to avail of such concession twice over.
4. The petition is opposed by the respondent DDA. It is contended by Ms. Chandra, learned counsel for the DDA, that it does not matter whether the petitioner has acquired the other property directly from the DDA by way of allotment, or through power of attorney/sale by the wpc 1337.08 Page 4 of 13 original allottee of the DDA. So long as the source from which the property has originated is the DDA, it is sufficient to debar the petitioner in terms of the last para of the aforesaid eligibility conditions. She submits that the argument that the petitioner is eligible on account of the fact that the petitioner is not the beneficiary of allotment at predetermined rates qua the plot acquired by the petitioner, his wife and son, cannot be accepted. In support of this argument, she relies upon a Division Bench Judgment of this Court in "Dal Chandra Sharma & Anr. v. Delhi Development Authority"
L.P.A. No.240/2007 decided on 30.09.2008. In this case the petitioner had privately acquired a property originally allotted by the DDA and was held ineligible for allotment of another property for which he emerged as the successful bidder in a public auction i.e. at Market price and not at predetermined rates which are concessional rates.
5. Ms. Chandra further submits that in the application form submitted by the petitioner he had undertaken that at the time of allotment the petitioner would execute an affidavit and undertaking as per the specimen attached in the brochure. The specimen of the affidavit specifically requires the petitioner to, inter alia, make the following declaration:
"1. That neither I nor my wife/husband or any of my minor children own in full or in part on lease-hold or wpc 1337.08 Page 5 of 13 free-hold basis or on hire-purchase basis any residential plot of land or a house or have been allotted any residential flat in Delhi, New Delhi, Delhi Cantonment."
6. She submits that the petitioner cannot truthfully make the said declaration, since he cannot say that neither he nor his wife nor any of his minor children own in full or in part on lease or free hold basis or on hire purchase basis any plot of land or a house and neither of them have been allotted a residential flat in Delhi, New Delhi or Delhi Cantonment. She submits that the decision of this Court in Jitender Pal Bhardwaj (supra) was an entirely different case on merits, inasmuch as, the petitioner in that case had acquired a flat in a group housing cooperative society of area lesser than 65 sq.mts. The flat in the case of Jitender Pal Bhardwaj (supra) did not originate from DDA. So far as the decision of the Supreme Court in Chandigarh Housing Board (supra) is concerned, she submits that even in that case the property acquired by the petitioner was allotted by the Army Welfare Housing Organization, a registered cooperative society and not by the Government.
7. Clause (ii) of the eligibility condition, which is relevant for the purpose of this case, is in three parts. The first part broadly states that a person who himself or whose spouse or minor children own a house/residential plot in Delhi would not be eligible to apply under the wpc 1337.08 Page 6 of 13 scheme. The second part, however, narrows down the aforesaid ineligibility by prescribing that if the individual share of the person is below 65 sq. mts. he would not be ineligible. The third part in turn seeks to limit the scope of the second part of the said clause aforesaid, by providing that a person who owns a house or a plot "allotted by the Delhi Development Authority" would not be eligible, irrespective of the area thereof. It is not in dispute that the individual share of the petitioner in the jointly owned plot that is held by him, his wife and his son comes to less than 65 sq. mts. Therefore, he is not rendered ineligible for allotment of a plot on the strength of the first part of Clause (ii), as he is saved by the second part thereof. However, in case, as contended by the respondent DDA, the petitioner can be said to be a person who owns a plot "allotted by the DDA" in respect of plot bearing no. 112, Pocket F-22, Sector 3 Rohini Residential Scheme, Delhi, he would forfeit his right to allotment of the plot now allotted to him. Having considered the submissions of the parties I am of the view that the expression "a plot allotted by the Delhi Development Authority", would not include a property acquired by the applicant through a private sale transaction which may originally have been acquired by the first owner through an allotment by the DDA. Such an interpretation is opposed to the plain language used in the eligibility wpc 1337.08 Page 7 of 13 condition which only talks of "a plot allotted by the Delhi Development Authority". This expression is used while dealing with the eligibility of the applicant. It would therefore mean that the allotment of the plot or house by the DDA has to be to the applicant. The person, to become ineligible under the Rohini Residential Scheme should himself be allotted a house or a plot by the DDA. The interpretation advanced by learned counsel for the respondent to the aforesaid clause is extremely wide and far fetched. The respondent is seeking to read into the said clause words and meaning which is not borne out therefrom. Reliance placed by the respondent on a Division Bench decision of this Court in Dalchand Sharma (supra) is of no avail. That was a case where one of the conditions of auction read:
"Any individual who is not a minor and is citizen of India may purchase lease hold rights in any one plot by bid in the auction, if he/she, his wife/husband or any of his/her minor and or dependent children or dependent parents or dependent minor sisters and brothers, ordinarily residing with him/her do not own in full or in part on lease hold or free hold basis any residential plot or house or have been allotted on hire purchase basis a residential plot or house or flat to any one in the past, nor has transferred his/her membership in any co-operative house building society/CGHS in Delhi."
8. Therefore the emphasis was on the "ownership" of the house/residential plot and not on the source from which ownership wpc 1337.08 Page 8 of 13 was derived. Pertinently, apart from "ownership" the eligibility condition specifically also rendered ineligible those who had been allotted a residential plot/house.
9. The auction bidder/petitioner in that case was also required to given, a declaration to the following effect :
"Neither I nor my wife-husband or any of my minor or dependent children old dependent parents or dependent minor sister and brothers ordinarily residing with me, own in full or in part on lease hold or free hold basis in any residential plot of land or house or have been, allotted on hire purchase basis a residential land or house in union territory of Delhi. I have transferred any residential plot/house or flat to any nor I have transferred my membership in any cooperative housing building society - CGHS in Delhi in Favour of anyone."
10. The petitioner Dalchand Sharma had sought to contend that he had acquired another property (prior to emerging as the successful bidder in the auction conducted by the DDA in respect of a plot in Yamuna Vihar) in Yamuna Vihar on the basis of an agreement to sell/power of attorney and not on the basis of a sale deed. It was argued that since the petitioner Dalchand Sharma was not the registered owner of the earlier acquired property in Yamuna Vihar, he was not debarred from participating in the auction on account of the aforesaid auction condition and declaration made by him.
11. This submission of the petitioner Dalchand Sharma was rejected wpc 1337.08 Page 9 of 13 by the Learned Single Judge as also by the Division Bench by giving a meaningful interpretation to the terms in the light of the fact that the petitioner had applied for conversion of the earlier acquired property into freehold in his name which was permissible. The decision in Dalchand Sharma, therefore, is of hardly any assistance in deciding the present case, as the eligibility condition considered in that case was materially different from the one under consideration.
12. In Chandigarh Housing Board (supra), the eligibility condition stipulated under the relevant housing scheme provided :
"The applicant should not have acquired a house/residential site anywhere in India through Government/semi-Government/Municipal Committee/Corporation/Improvement Trust at concessional rate i.e. at reserved/fixed price, in his/her own name or in the name of any dependent member of his/her family".
13. While interpreting the aforesaid eligibility condition, the Supreme Court observed that the right to acquire property thought not a fundamental right, is nevertheless a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and/or contract must expressly or explicitly state so. The respondent had been allotted a flat by Army Welfare Housing Organization, registered society under the Societies Registration Act. The said organization undisputedly is not a government or semi wpc 1337.08 Page 10 of 13 government organization. The Supreme Court, keeping in view the settled principles of interpretation of deed/statute, held that the condition of eligibility must be construed literally. If a plain meaning can be given effect to, there is no reason why it should not be applied. The Court would not take recourse to any other principle of interpretation when it is not necessary.
14. A similar argument as the one raised by learned counsel for the respondent before me, that the plot bearing no. 112 had initially been allotted by the DDA on concessional rates to the original allottee was rejected by the Supreme Court. It was sought to be contended by the petitioner Chandigarh Housing Board that the expression „through‟ must be given its due meaning in construction of the eligibility conditions and in view of the fact that some allotments at concessional rates had been made by the Ministry of Housing and Urban Development to the Societies, the respondents being part of the Society would come within the purview of the restrictions in the eligibility condition. The Supreme Court held as follows:
"30. We are unable to accept the said submission. The word "through" in this context would imply "agency". Thus only when a person acquires some property through the "agency" specifically mentioned therein, the condition of eligibility which, it will be a repetition to state, imposes a restriction on a valuable right of a citizen must be held to be applicable and not otherwise.wpc 1337.08 Page 11 of 13
31. Acquisition of any property through any other source or through any other agency is not prohibited. Right to acquire property is a human right. A deed must be construed reasonably and in its entirety. If acquisition of any property through any agency other than specified therein is not prohibited, evidently, the restriction clause in the condition of eligibility will have no application. The same, in our opinion, must be construed strictly. A clause impinging the right of a citizen must, in our opinion, receive strict construction and the principle of contextual interpretation will have no application in such a case."
15. The submission of learned counsel for the respondent founded upon the declaration required to be made by the petitioner at the time of allotment is also, in my view, of no avail. I have already held in Jitender Pal Bhardwaj (supra) that the statement required to be made in the affidavit has to be read in conjunction with the eligibility condition contained in the Rohini Residential Scheme.
16. I, therefore, allow the writ petition and direct respondent to allot and deliver to the petitioner the Plot No. 163, Pocket NO. 1, Block C, Sector 27, admeasuring 32 sq. mts. in Rohini, Phase IV Residential Scheme. In case the said plot already stands allotted to any other person, the respondent shall allot another similar developed plot in the same pocket/block/sector in Rohini Phase IV Residential Scheme to the petitioner at the same rate at which the earlier allotment vide an allotment cum demand letter dated 11.06.2004 to 15.06.2004 was wpc 1337.08 Page 12 of 13 made in his favour. The petitioner shall be delivered possession of the allotted plot within four weeks upon the petitioner completing all other formalities. The petitioner shall be entitled to costs quantified at Rs. 5,000/-.
VIPIN SANGHI, J.
DECEMBER 18, 2008 rsk wpc 1337.08 Page 13 of 13